OK, so you own a home in the NY Metropolitan area, and have some land.  Houses around here have a half-acre, or an acre or even 2-3 acres.  That’s a lot of land around here.  Now imagine you have so much land that you and the golf course next door are arguing over a mere 5 acres between you that the surveyors cannot agree upon.  Is it yours or theirs, and is it legal malpractice not to raise an adverse possession defense?

This is the situation in Owens v Andruschat  2015 NY Slip Op 30087(U)  January 26, 2015  Supreme Court, Wyoming County  Docket Number: 39094  Judge: Michael M. Mohun.  "In 2003, Thomas Brahaney, an adjoining landowner, sued the plaintiffs in an action to quiet title to his property [the underlying action]. At the time, the plaintiffs owned a parcel of land of a little less than 50 acres in Arcade, New York, on which they had been operating a public golf course. Brahaney’s similarly sized parcel lay immediately to the east. In the underlying action, the line that Brahaney claimed for his western boundary [the plaintiffs’ eastern boundary] was some 70 feet west from the place where the plaintiffs believed it to be. Significantly, Brahaney’s line encroached upon areas used by the plaintiffs for their golf course. Brahaney asked the Court to declare that he owned the disputed strip along the boundary line, and also that it award him damages for the plaintiff’s timber
cutting and other actions in the strip.

Both parties claimed to own the strip in the underlying action, the plaintiffs having interposed a counterclaim seeking a declaration in their favor. Notably, the deed descriptions of both parcels were entirely consistent with each other. It appears that the discrepancy in the placement of the boundary line was traceable to a large extent to a difference of opinion among the surveyors. This is shown clearly on the Map and Survey of James L. Brown, dated February 27, 2003, which the plaintiffs have attached as an exhibit to their complaint in this action. Notations in Brown’s map show both a "Deeded Division Line," and a "Division Line Between Owens and Brahaney per Gillen [a previous surveyor]." The "Deeded Division Line" on the map coincides with Brahaney’s claim in the underlying action, and the line "per Gillen" coincides with the plaintiffs’ claim. Brown’s map also includes reference to the remnants of an old barbed wire fence running along part of the "per Gillen" line. The plaintiffs’ surveyor, John Gillen, stated in his trial testimony that he viewed this fence as an important indicator of a longstanding line of occupation used by the property owners, and on this basis he concluded that the eastern boundary of the plaintiffs’ property should be placed on the line near where the remnants of the fence were found. 

The defendants, Thomas E. Andruschat, Esq., and his former law firm, represented the plaintiffs in the underlying action. After a non-jury trial, the Court found in favor of Brahaney, declaring him the owner of the disputed strip and awarding him damages. In their complaint, the plaintiffs allege that Mr. Andruschat committed malpractice by failing to raise the defense of adverse possession at the trial. The defendants deny that malpractice occurred and assert that adverse possession was not viable as a defense in the underlying action. 

The defendants contend that Mr. Andruschat skillfully handled the trial of the underlying action, and that he correctly determined that an adverse possession defense lacked merit and would not succeed. They argue that Andruschat’s decision to base the trial defense on the doctrine of
practical location of a boundary line, rather than on the doctrine of adverse possession, was a reasonable strategic choice under the circumstances. They further argue that due to the fact that the plaintiffs later lost ownership of their entire parcel through foreclosure, they are unable to prove that they sustained actual ascertainable damages as a result of the alleged malpractice.

Thus, the plaintiffs would not have been able to show actual possession of the strip after 1989, either. Moreover, at no time, either before or after 1989, did the plaintiffs activities within the strip fulfill the added requirement of former RPAPL §522 that the property in question must be either "usually cultivated or improved," or "protected by a substantial inclosure." Lastly, the fact that the plaintiffs offered the buy Brahaney’s entire parcel in May of 1996 presented an insurmountable obstacle to any attempt to raise at trial an adverse possession defense premised on the plaintiffs use of the strip after 1989. The purchase offer made within the limitations period constituted an "overt acknowledgment of title in another" which negated the element of hostility required to establish adverse possession (Walling, supra; Larsen v. Hanson, 58 A.D.3d 1003, 1004 [3rd
Dept., 2009]). "